There is a significant amendment to the rule on prior consistent statements 801(d)(1)(B). Up until now, prior consistent statements were non-hearsay only when elicited to rebut a charge of recent fabrication. The amendment does away with that restriction. Beginning on December 1, prior consistent statements will be admissible as substantive evidence to rehabilitate the witness after any kind of attack on credibility – memory, perception, etc. Watch out for more Government sandbagging! While the Committee Comments claim that the rule retains Tome’s restriction (e.g. that the prior consistent-statement has to be pre-motive for fabrication), the proposed amendment makes the concept so difficult to define that Tome lives on in name only. At least that is my prediction, stay tuned.

For a nice history of this amendment, checkout this summary on the Federal Evidence Review blog.

Rep. Joe Haveman has introduced a number of bills to get smart on corrections. The bills would reduce sentences and increase supervision. It would also create sensible parole and probations reforms. Corrections cost the state a great deal of money and these bills make a great deal of sense. Unfortunately, they are being opposed by Attorney General Bill Schuette who is clearly trying to gain political capital by calling for tough sanctions on everything. I truly hope that General Schuette has thought through the costs that his positions will bring. For some reason Republican fiscal prudence is lost on some when it comes to corrections. It costs over $40,000 per year to house inmates and this needs to be factored in. Unfortunately, one of the problems with our modern day criminal justice system is that the successes are never heard from again and the failures make front page on the news.

There was an interesting article in the New York Times (and part two here) about how at least New York Parole boards are starting to move away from the position that an offender has to admit guilt as a precondition of parole. As more and more exonerations have shown us, a prisoner’s claims of innocence are real. Additionally, parole board’s often demand the offender accept the victim’s versions of events when the truth is somewhere between the two positions. More troubling is the continued belief that confession is good for the soul. Many habitual offenders are very good at apologizing and showing remorse when caught. The problem is that they go right out and commit new crimes again. Conversely, the individuals who do not feign a confession to get their freedom may be demonstrating much higher moral character. Then there is the question of a pending a appeal. The United States Supreme Court split badly the last time the question was before them about whether an offender could assert the Fifth Amendment privilege of self-incrimination without penalty at a parole interview. The deciding vote was Justice O’Connor who has since left the Court.

In People v. Deroche, 299 Mich. App. 301 (2013), the Michigan Court of Appeals held that a Defendant’s Second Amendment right to keep and bear arms invalidated Michigan’s statute barring a firearm while intoxicated. In Deroche, the Defendant was at home and intoxicated. The firearm was stored elsewhere in the home, but was also under Mr. Deroche’s control and dominion. This would have met the legal requirements for “constructive possession.” The Michigan Court of Appeals held that the Second Amendment barred this constructive possession theory.

In People v. Wilder, No. 316220, declined to extend Deroche to an actual possession situation. In Wilder, there was evidence that the Defendant actually moved the firearm while intoxicated. The Court, therefore, found that the statute met the intermediate scrutinity required for a Second Amendment analysis.

Ms. Wilder had been drinking most of the day with her domestic partner. The complainant testified that the defendant brandished the gun at her after she hit the complainant, strangled her, and told her to get out of the house; the Defendant testified that she moved the firearm to a place of temporary safety from her drunken partner. She denied the brandishing.

The Court of Appeals applied a two-prong test to determine and determined that the application did not violate the Defendant ‘s Second Amendment rights. The take-away is that gun owners who choose to drink in their own home will face judicial scrutiny if they have a firearm on their premises and drink. Person’s considering drinking at home should physically lock their firearms up prior to consuming any alcohol. People v Wilder, Court of Appeals No. 316220.

President has appointed Loretta Lynch to be the next Attorney General (replacing Attorney General Eric Holder). Ms. Lynch is a career prosecutor and is currently the United States Attorney for the Eastern District of New York. She will be the first black-female Attorney General. Eric Holder was black and Janet Reno was obviously female so this is only a modest step forward.

Ms. Lynch is a career prosecutor and is not particularly close to the President. In this lame duck part of his career (and following the Republican taking of the Senate) many political commentators speculate that the Democrats may have picked someone with some distance from the President. They are hoping that this will make the confirmation process work less contentious.

In People v. Wood, the Court affirmed the trial court’s admission of Y-STR DNA testing to isolate the male Y-chromosome DNA on a scarf used to bind the victim’s hands. The scarf contained DNA from four individuals, only one of which was a man. The Court recognized that Y-STR DNA testing is an accepted practice, and held that the method’s limitations go to the weight rather than the admissibility of the evidence. The Defendant (and a co-defendant) had broken into

The Defendant raised a Daubert challenge to the Court’s decision to admit the DNA evidence from a scarf used to bind the victim’s hands. Because the scarf contained DNA from at least four people (only one of whom was male) the forensic analyst used the Y-STR method of DNA testing to isolate the male Y-chromosome DNA.

Unlike more common STR DNA testing, which can identify a unique individual, Y-STR DNA testing cannot because a man will have the same Y-STR DNA profile as his father and grandfather, and because random matches in the general population are also possible. Stated another way, Y-STR is significantly less reliable to than STR testing.

Since the forensic analyst testified in detail about the limitations of Y-STR DNA evidence, and Y-STR DNA testing is an accepted practice, the court held that the method’s limitations go to the weight rather than the admissibility of the evidence and it was properly admitted.

Affirming the decision of the Kent Circuit Court, the Michigan Court of Appeals found that the defendant did not waive his Fourth Amendment privacy by taking his computer in for service at a Best Buy. The Defendant brought his laptop in for service and paid for BestBuy to do a backup. While backing up the computer, the employee saw several computer names which were suspicious and the employee thought there was child pornography on the machine. The responding officer had the employee remove the Defendant’s hard drive from the backup unit, mount it to a different computer, and open the files. The Court of Appeals and the trial court found that the police had effectively commandeered the computer and violated the Defendant’s privacy rights. People v Gingrich, Court of Appeals No. 310416.

Justices Brian Zahra and David Viviano both won re-election to the Michigan Supreme Court Tuesday and will be joined by incoming Justice Richard Bernstein.

Justice Zahra and Mr. Bernstein were both elected to full, eight-year terms on the Court. Justice Viviano was elected to fill the remaining two years of the term to which he was appointed by Governor Snyder. Justice Bernstein is taking the opening left open by Justice Michael Cavanagh’s retirement.

Every defense attorney has had a case where the prosecution agrees to a plea bargain only to have a judge refuse to take the plea. While Michigan law gives the judge some discretion to refuse a plea, the court rules is much more limited with respect to plea withdrawals. The Defendant has a relatively broad right to seek a plea withdrawal where there are facts which will undercut the validity of the plea. A prosecutor has the right to withdraw a plea where the Defendant breaches the terms of the agreement.

Many judges believed that this same power allowed a court to set aside a plea bargain, even a textual reading of MCR 6.310 did not grant them this power. In People v Martinez the Michigan Court of Appeals held that the trial court abused its discretion by setting aside (on its own initiative) defendant’s guilty plea, reasoning that the plea agreement was not based on a "mutual mistake of fact". People v. Martinez, No. 311804,. In Martinez, the State gave the defendant a plea offer which immunized all other uncharged misconduct arising out of the charged series of events. The police reports were poorly drafted and omitted some references to some related (but potentially more serious) misconduct.

The trial judge relied on its “inherent authority” to vacate the plea. The lower court judge identified some instances where the Courts had permitted judicially initiated plea withdrawals. The Martinez Court acknowledged this, but the Court declined the People’s proposed extension of the rule.

As noted earlier, the Michigan Court of Appeals has upheld the Michigan Sentencing Guidelines against a constitutional challenge based on a US Supreme Court ruling called Alleyne v United States, 570 US ___; 133 S Ct 2151; 186 L Ed 2d 314 (2013) which extended the jury trial right to many presumptive sentencing schemes.

In granting leave to appeal, the Michigan Supreme Court instructed the parties to address: (1) whether a judge’s determination of the appropriate sentencing guidelines range, MCL 777.1, et seq., establishes a “mandatory minimum sentence,” such that the facts used to score the offense variables must be admitted by the defendant or established beyond a reasonable doubt to the trier of fact, Alleyne, 133 S Ct 2151 (2013); and (2) whether the fact that a judge may depart downward from the sentencing guidelines range for “substantial and compelling” reasons, MCL 769.34(3), prevents the sentencing guidelines from being a “mandatory minimum” under Alleyne, see United States v. Booker, 543 US 220 (2005). The Michigan Supreme Court invited the Prosecuting Attorneys Association of Michigan and the Criminal Defense Attorneys of Michigan to file briefs amicus curiae.

In People v. Lockridge, the Michigan Supreme Court will consider whether a judicial determination of a defendant’s sentencing guideline range establishes a mandatory minimum sentence in violation of the United States Supreme Court’s 2013 decision in Alleyne v. United States. This is not the first time that the Michigan Supreme Court has addressed how Booker-Apprendi cases impacts the Michigan sentencing guidelines. This time may be different. Additionally, there is language in the Court’s earlier ruling in People v Carp which has language which suggests that the Court may be resigned to the applicability of Alleyne in Michigan.

In the lower court, the Court of Appeals reluctantly followed People v Herron (which upheld the guidelines) but expressed its doubts about the ruling. People v Lockridge, __ Mich App __; __ NW2d __ (No. 310649, 2014 WL 563648, decided February 13, 2014)(feb’14). In two separate and complex concurrences in this manslaughter case, Judges Beckering and Shapiro firmly disagree with the conclusion in People v Herron, 303 Mich App 392; __ NW2d __ (2013) that Apprendi remains inapplicable to sentencing guidelines in Michigan in the wake of Alleyne. Both concurring judges agreed, however, that they were bound to follow Herron.

The Department of Justice and the Department of Commerce have announced a blue ribbon task force on forensic reform. Members of the committee include not only prosecutors and law enforcement, but also people with strong ties to Innocence Projects and forensic scientists who have been critical of the methodology used by some crime labs. This court be big! The full story is the DOJ’s press release. Read More...

When a crime is allegedly committed, the police and the prosecution can often seize items related to the crime. This can sometimes happen when the owner of the property is completely innocent. In tough times, this has created a conflict of interest in the police and prosecutors. They can easily make a ton of money to help their departments at the expense of innocent individuals. Two bills were recently introduced in the Michigan Legislature to place some modest limits on this problems. HB 5213 would require a criminal conviction before a forfeiture action could be filed. HB5081 tightens up the reporting requirements on the forfeiture so that problem departments can be identified in the future.

There was an interesting editorial by George Will in today's Washington Post about “sledge hammer” justice about how the prosecutor can use its charging discretion to force most defendant’s to plea guilty or face exceptionally long sentences. While some consideration should be permitted for pleas, when is the “trial tax” too excessive?

For the last ten years, criminal defense attorneys have thought of Michigan sentencing guidelines were unconstitutional. In Apprendi v New Jersey, the Court held that a State could not avoid the reasonable doubt standard by shifting elements of a criminal offense to the sentencing phase. The Court stated that factors which raised penalties are de facto elements which must be proven beyond a reasonable doubt to a jury. Over the last ten years, the Michigan Supreme Court has continuously rejected this argument despite the fact that the United States Supreme Court has been consistently expanding the Apprendi doctrine. Last year, I blogged about a United States Supreme Court ruling called Alleyne v United States, 570 US ___; 133 S Ct 2151; 186 L Ed 2d 314 (2013), which I thought was the last nail in this flawed argument’s “coffin.” How wrong I was.Yesterday, a panel of Michigan Court of Appeals rejected the Alleyne challenge in People v Herron, Court of Appeals No. 309320. The court distinguished every United States Supreme Court case along this line based and distinctions which this author believes are irrelevant. If they willing of our Court of Appeals is mirrored by the Michigan Supreme Court, the only remedy that a defendant world will receive is likely to be from the United States Supreme Court. Stay tuned, this issue is far from over.Mr. Herron is represented by Christine Pagac at the State Appellate Defender’s Offender’s Office.

Ninth Circuit Judge Kozinski may be a conservative, but he has long ago earned my respect for his honesty and ability to not simply tow the party line. His dissent in United States v Hicks, Ninth Circuit No. 10-36063 is no exception. It is rare that a dissent may be a call to action, but this case may be that exception.

Under Brady v Maryland requires prosecutors to disclose all evidence which is exculpatory in nature or which mitigates punishment. Unfortunately, in our adversarial system prosecutors are often tempted to bury this evidence. The problem comes with the fact that the person exercising this judgment has a conflicting obligation Moschus is to try and convict a defendant. What prosecutor is theoretically the Minister of Justice career advancement is normally based on convictions. Prosecutor to conceal evidence rarely phrase discipline for doing so and I virtually never prosecuted.

Kenneth Olsen was charged with developing chemical weapons of mass distraction. There was evidence presented at trial that he was attempting to develop the chemical ricin. The quantities impurities of this drug however were so low that the government was going to have a difficult time proving that the defendant had any intent to injure other people. To overcome this, the assistant United States attorney call Arnold Meinkhoff as their expert witness. Prosecutor concealed an internal investigation which showed huge problems with this expert witnesses integrity or level of care. Fourteen of his one hundred investigations which were audited showed serious problems.

This was never turned over to the defense counsel. The majority of the Ninth Circuit Court of Appeals upheld this nondisclosure. A majority of United States Court of Appeals for the Ninth Circuit then denied en band rehearing.Judge Kozinski not only dissented from the results in that case, but noted that Brady violations had reached epidemic proportions.

Judge Kozinski further wrote:

“The panel's ruling is not just wrong, it is dangerously broad, carrying far-reaching implications for the administration of criminal justice. It effectively announces that the prosecution need not produce exculpatory or impeaching evidence so long as it's possible the defendant would've been convicted anyway. This will send a clear signal to prosecutors that, when a case is close, it's best to hide evidence helpful to the defense, as there will be a fair chance reviewing courts will look the other way, as happened here."

The problem is systemic. Prosecutors cannot be trusted to determine what evidence must be turned over to undercut their cases. Courts need to move this determination from the prosecutor to an independent master. Similarly forensics needs to be moved from an adversarial branch government to a branch under the court which is not incentivized in anyway to call a matter in one want manor or the other. These experts also need to be shielded from the other evidence and opinions in the case so that all they are determining is based on the evidence they are charge with investigating.

Appellate counsel are well advised to fight for video disks and prosecutor power points in trials. The States of Washington and Nevada recently reversed prosecutor’s for using PowerPoints closing arguments with images of the Defendant and the word “Guilty” superimposed. The Courts say that the prosecutor cannot imply personal opinions of guilt and that the PowerPoints were far more powerful than mere words. Here is a link to the Washington case and here is a link to the Nevada case. The slide is a mockup of the particular slide described as improper by both the Nevada and Washington appellate courts. The slide is a mockup of the particular slide described as improper by both the Nevada and Washington appellate courts.

There is a very interesting article in Today’s New York Times on the trial tax. It recognizes what most defense attorneys often know. Defendants who demand jury trials and assert their innocence or often threatened with very severe penalties by the Government to try and force them to forego a trial and take a plea. Even the innocent capitulate. The US Supreme Court upheld this conduct in Bordenkircher v Hayes but there needs to be limits. I understand that settlements mean posturing and that both sides settle which they are not completely happy with, but there can be differences running in the decades. It is easy to think that you would stand your ground if you are actually innocent, but what would you do if they offered you probation for an offense you did not commit versus twenty years in the joint if the jury convicts. The Acceptance of Responsibility scorings on the Sentencing Guidelines were meant to create an acceptable difference. It gives you about a 15% discount on the average sentence for pleading guilty. The practices outlined by the New York Times are highly problematic.

I won a nice win today in the Court of Appeals in Dearborn v Navoy, Court of Appeals No. 311069. Dearborn District Judge Somers has been an outspoken critic of medical marijuana and actually wrote an opinion declaring the law unconstitutional. Despite his repeated comments about his disbelief of the legitimacy of medical marijuana, his belief that that it is the “devil’s weed,” and his long monologues against the drugs, he refused to remove himself from Dearborn v Navoy. The District Chief Judge removed him, the Circuit Court affirmed, and now the Court of Appeals firmed in the linked opinion. While not clear from the opinion, Mr. Navoy has a medical marijuana card. We are placed that our client will have an opportunity to present the matter to a judge who has not staked out the position that Judge Somers has taken.I also want to give a public nod to my colleague and friend Neil Rockind for his brilliant work in the case. He is a truly great co-counsel.

The Anti-Terrorism and Effective Death Penalty Act (AEDPA) definitely complicated the pursuit of habeas corpus relief. The incarcerated can no longer write successive petitions and a defendant’s appeal must contain all claims. Furthermore, the only successful habeas claims are the ones where convictions are transparently contrary to “clearly established federal law” or an “unreasonable determination of the facts in light of the evidence.” 28 U.S.C. § 2254. Supported by the United States Department of Justice, Vanderbilt University Law School released a 2007 study, “Habeas Litigation in U.S. District Courts: An Empirical Study of Habeas Corpus Cases Filed by State Prisoners Under the Antiterrorism and Effective Death Penalty Act of 1996.” Its conclusion was as follows: There are slower completion times per case and fewer petitions granted on average.

Then the Sixth Circuit issued its October 30, 2013, Peoples v Lafler opinion. A three-member panel criticized a Michigan prosecutor for a false inference argument and deemed that it was prosecutorial misconduct. The court ruled that AEDPA precluded them from reviewing the case, yet the issue that ultimately was considered dicta in the appellate opinion may nudge open AEDPA’s heavy door. In Peoples v. Lafler, two witnesses told a similar story that was the only evidence connecting Jesse Peoples to the murder of Shannon Clark, a Detroit drug dealer fatally shot outside his home. However, the evidence was “known false testimony” and “trial counsel did not use the only hard evidence at his disposal to prove that the two witnesses not only lied, but told the same lie,” the appellate court said in its opinion. Three months after Clark’s death, police arrested Jesse Peoples, Demetrious Powell, and Cornelious Harris after the men led police on a chase in a stolen Jaguar that ultimately crashed. Police found on the driver’s side floorboard the pistol that killed Clark. Also, a police officer witnessing the crash writes a report identifying Harris as the driver. Peoples, while awaiting trial, mailed defense counsel a copy of the police report, indictment, and criminal docket sheet showing that Harris was the Jag’s driver. However, they are ignored and Harris and Powell are able to spin a similar story about Peoples’ involvement.

The Sixth Circuit partially reversed the decision relating to Peoples’ ineffective assistance of counsel claim and remanded the case to the district court to conditionally grant a habeas corpus writ, giving the State of Michigan 90 days to retry Peoples or release him from custody. Quoting the opinion, “ ‘[i]t is particularly unreasonable to fail to track down readily available and likely useful evidence that a client himself asks his counsel to obtain.’ Couch v. Booker, 632 F.3d 241, 247 (6th Cir. 2011). Where, as here, counsel fails to use a police report, indictments, and criminal docket sheets the client himself obtained that would have proven counsel’s own defense theory, the failure is, a fortiori, unreasonable to the point of constitutional deficiency. It certainly is not, by any objective measure, sound trial strategy.”

The appellate court’s AEDPA deference delved into discussions of a “modified form of AEDPA deference,” in which the court focuses on the result rather than the reasoning of the state court. Hawkins v. Coyle, 547 F.3d 540, 546 (6th Cir. 2008). The question then, according to the court, is whether there was a reasonable likelihood that the trial’s outcome would have been different if the known false testimony had never been presented. The court concluded that there was other testimony connecting him to the murder so there was no reasonable likelihood that the outcome would have been acquittal or conviction on a lesser charge. Keep in mind, the court decided in this case to “REMAND the case to the district court with instructions to conditionally GRANT a writ of habeas corpus.”

The Michigan Supreme Court just granted permission to appeal on People v Carp and People v Eliason. These cases deal with the retroactivity of the United States Supreme Court’s ruling in Miller v Alabama (Carp); and the appropriate remedy should be for these individuals (Eliason). The Court has also agreed to hear a third case where the question is whether a juvenile convicted of aiding and abetting first degree murder can potentially receive a natural life sentence or whether Graham v Florida bars this. I will post an update to this with links to the various orders in the near future. In the mean time, here is a good link from M-Live.

Hats off to the Canadian Supreme Court in Regina v Vu, 2013 SCC 60 (2013) for recognizing what so many American courts don’t seem to get -- that computers are different. Police are now routinely seeking (and unfortunately getting permission) to search everyone’s computers when they have probable cause of any evidence of crimes. The Canadian Supreme Court said that there has to be individualized probable cause to search a computer and that the police cannot get to its contents by virtue a general search warrant to search a home.

People v Alex Aceval is one of the strangest cases I have ever worked on. There is no disputed that the State presented perjured testimony at my client’s trial. The judge granted the prosecutor’s secret motion for permission to present this testimony and had a court reporter transcribe the motion. The prosecutor was disbarred for it. The case wrecked the judicial career of the judge who was forced into retirement with a blot on what would have been an otherwise distinguished career. Most of the police were convicted as well.

Still, the State of Michigan steadfastly argued that Mr. Aceval’s conviction was not tarnished by the perjury. Recently, Judge Tarnow disagreed. Calling the Defendant’s trial a sham the judge said that the charges should have been dismissed with prejudice. Earlier this week, Mr. Aceval was released a free man. The state has not decided whether it will appeal.

I was delighted to read that Google has finally decided to tweak its algorithm to downgrade the so-called Mugshot sites. These sites publish the mugshots and arrest details of individuals who have been arrested for a crime, even when the charges are dropped or the individual pleads to a deal which does not result in a criminal record.

The sites usually work closely with a so-called removal service which will remove your name from their website for a payment of $400 or so. Some charge more; some charge less. Most of the sites also have a free removal process, but my clients have reported to me that the free removal services is overly cumbersome and the sites will only comply if there is an express statute banning the publication of the information. Thus, if the offender pleads to a deferred adjudication with no criminal record, many of these sites will leave the charges up even though the individiual has never been convicted of an offense.

There is also a rising grass roots movement against these sites. Many people feel that they have been the victim of blackmail and that even when they capitulate and pay the money, their name promptly prompts up on a new server. It effectively becomes a game of “whack a mole.”

The article also reports that many credit card processors have refused to handle these removal businesses and that PayPal has banned them as well. While I feel positive about these developments, my unscientific experiment showed that these sites still come up on the top with respect to my former clients with sheltered convictions. Amending the Fair Credit Reporting Act to cover these sites would be the answer in this author’s opinion. It already covers some dissemination of criminal records.

Critics decry mandatory minimum sentences for non-violent offenders as an unfair and expensive means of ruining lives. Yet the United States Court of Appeals, Second Circuit, recently stood its ground when it reversed federal Judge Jack Weinstein’s ruling to deliver a 30-month prison sentence to Corey Reingold, who had pled guilty to committing, at age 19, one count of distributing child pornography. According to a Sept. 27, 2013, news account from the ABA Journal, Reingold had shared child pornography through a file-sharing program called GigaTribe. He had admitted to downloading “a ton” of child porn and also admitted to sexual conduct with a minor who is a relative. The mandatory minimum sentence was five years. Their ruling is available here.In the Second Circuit’s Sept. 26, 2013, reversal, where the order is to “remand the case to the district court with directions that it vacate the sentence and resentence the defendant consistent with this opinion,” Judge Weinstein’s 401-page sentencing opinion came under review, along with the judge’s allegation that a five-year sentence for Corey Reingold was an unconstitutional Eighth Amendment violation. Judge Weinstein had claimed the mandatory minimum a cruel and unusual punishment and had suggested that 30 months would provide enough psychiatric treatment to prevent a repeat offense.

The 2nd Circuit’s reversal, though, found no such constitutional violation and a case analysis gave much attention toHarmelin v. Michigan, 501 U.S. 957 (1991), for case specific analysis and Graham v. Florida, 130 S.Ct. 2011 (2010), forcategorical rule analysis. The court emphasized, citing Graham, that punishments are deemed cruel and unusual when they are both “inherently barbaric” and “disproportionate to the crime.” A five-year sentence, the court said, requires categorical rules to ensure constitutional proportionality as applied to particular felony crimes or classes of defendants, and the Second Circuit ruled that Judge Weinstein had not employed Graham’s analytic approach to pronounce a categorical rule. Instead, the appellate court said Judge Weinstein had found the five-year minimum disproportionate to the offense as applied specifically to Reingold. “The Supreme Court’s proportionality jurisprudence does not support such asubstitution of Graham’s categorical-rule approach for Harmelin’s particular-case approach to assess the proportionality of an otherwise permissible term-of-years sentence as applied to a particular case,” the court said. The reversal also criticized Judge Weinstein’s emphasis on juvenile offenders. “Reingold was already 19 when he committed the crime of conviction,” the 2nd Circuit’s opinion reads. “In short, he was an adult, not a juvenile.”

Judge Weinstein’s sentencing opinion states that Corey Reingold was 15 when he started smoking marijuana and drinking alcohol. A year later, the judge wrote, a friend introduced him to child pornography on the Internet. He began watching the material with male and female peers.

Imagine facing criminal sexual conduct charges and then having the trial court fail to demand new jury deliberations when an alternate juror takes the place of a holdout, deadlocking juror who, by the way, waited to the last minute to tell others he once was the alleged perpetrator in a sexual misconduct investigation. Atta boy to attorney Mitch Foster, who, while representing David Paul Morikawa, legally persuaded a conservative Michigan Court of Appeals panel to reverse and remand the defendant-appellant’s jury conviction of two second—degree CSC counts. Mr. Morikawa will get a new trial thanks to this exceedingly rare finding of ineffective trial counsel assistance. In an unpublished Aug. 27, 2013, opinion, the conservative court led by presiding Judge Michael Talbot, branded the original Iron Circuit Court's failure to demand new deliberations as “plain error.” The appellate court, in its non-binding opinion, cites MCR 6.411: “[i]f an alternate juror replaces a juror after the jury retires to consider its verdict, the court shall instruct the jury to begin its deliberations anew.” Errors in jury instructions, the appellate court emphasizes, are of a constitutional magnitude. People v. Tate, 244 Mich App 553, 567; 624 NW2d 524 (2001). There actually were two deadlocked jurors in this case. Juror K was the one who, upon questioning, revealed that he was at a Christmas party several years before when he touched a young girl during a group picture. He further revealed that he was cleared of any wrongdoing and said he did not mention the incident during voir dire for two reasons: He didn’t think the past would affect his judgment and he did not want to bring attention to himself. The court removed him from the case after further learning that “he had received a lot of peer pressure in the jury room.” Once an alternate was chosen, the court ordered the jury resume deliberations instead of starting anew, and the defense counsel politely declined the judge’s invitation for comments. “Given the existence of the original two ‘holdouts,’ this was obviously a close case,” the court wrote in its opinion, “and, when viewed in light of the error discussed infra, we find that it could indeed have had an effect in the outcome of the trial if the jury had begun deliberations anew with a new member and the fresh perspective that member would bring.” The infra error was when the court gave sway to the prosecution in its line of questioning. The appellate court cited MRE 404(a), which says the only way prosecutors can introduce evidence of a non-testifying defendant’s character is if the defendant “first opens the door” by offering evidence of that character trait. The prosecutor was questioning a female witness about Mr. Morikawa and how she came to know him. After some routine questions, the prosecutor then asked the following: “And based upon your familiarity with him and with other troopers can you come to a conclusion or an opinion as to his credibility and veracity being truthfulness? Do you have an opinion?” A: Yes, I do. Q: What is it? A: He is not credible.The prosecutor had the witness clarify that she meant “truthful” when she said “credible.” There was no objection from defense counsel. People v Morikawa, Court of Appeals No. 308016.